Hello, my name is attorney Jason Lile and I am the Oklahoma Will and Trust lawyer for Northeastern Oklahoma in your area. I’d like to talk to you a little bit today about something that causes some confusion amongst my clients when it comes to estate planning. I often get approached or asked by new clients to draft a trust or a will and they want to know the difference. Most people don’t understand the difference. So let me tell you a little bit about the difference.
The Power of a Trust vs. a Will
The nice thing about a trust is that if the condition springs it into existence, meaning you’re your own trustee unless and until you become incapacitated or you die. When one of those things happens, your successor trustee takes over and has the power over the property that’s put in the trust. The trust contains instructions for that to happen. A will is basically the same thing. It’s a document that says when you die, then you nominate somebody to do the same thing. But the main difference and this is important, is in order to get the power that’s given to somebody by a will, that person or somebody else has to file a probate action in the district court.
Avoiding Probate with a Trust
Because when you file a probate action, you’re essentially asking the judge, please recognize that this person died in this county and they died with a will, if that’s the case or without, that if there’s a will, they died with a will, who’s asking to be the personal representative? Does the will name somebody? Does anybody object? It’s only then after you get past that first hearing that determines those things that the judge signs some documents called letters of, letters of testamentary if there’s a will, is what they’re called, and an order declaring who the heirs are and who the personal representative is. So until you have those documents and they’re filed with the court clerk, you as the personal representative or whomever you appointed will not have the power to help you manage your estate. So we often tell people we draft trusts to avoid probate because if somebody is not going to sue you into probate, a creditor or a family member, then the trustee will have power immediately over the estate by virtue of the trust and they don’t have to go to probate.
Reach Out to a Will and Trust Attorney
If you need more information or would like to speak with a Tulsa trust lawyer, contact us at oklahomawillandtrust.com.